Chapter One: General Consideration

Introduction

Family is the basic unit of a society. It has social as well as economic importance in any society.
Naturally, persons bound by consanguinity and affinity are united to form the community. ‘With time,
the growing family has a tendency to become a tribe.’ The formation of a tribe entails the splitting up or
disintegration of the family, so as to make a new and additional family in the society. With the increase
in the number of families arise various issues; like responsibilities and rights of the family members. The
need to have a law governing the family relationship is somehow tied with the development of family
through time. Considering this need, societies have developed one branch of law solely dealing with
issues related to the family: Family Law.

Family Law is the branch of law which sets the rules to govern the ongoing responsibilities of family
members to each other; both at the time families are formed and after relationships dissolve. The
application of the family law begins at the time of formation of family either through marriage or
irregular union. Its application extends throughout the life time of the existence of the family
relationship as well as at the time of its dissolution.

In this chapter, you will learn about the sources of family law, the reasons for protecting and regulating
the family, the sources as well as effects of family relationships.

Objectives

At the end of this chapter, students will be able to:

discuss the meaning and sources of family law.

analyze the rationale behind protection and regulation of family.

understand the different sources of family relationship.

discuss the effects of family relationship.

Definition and Sources of Family Law

There is no generally accepted definition of family law. ‘Family law is usually seen as the law governing
the relationship between children and parents, and between adults in close emotional relationships’.
Many areas of law can have an impact on family life: tax laws, immigration laws as well as insurance
laws have great connection with family law. As Dewar noted:

Most legal disciplines would claim to possess at least one of two forms of coherence. The
first stems from the organizing legal concept from which the discipline in question derives
its name: ‘contract’, ‘negligence’, ‘trust’. The second relates to the set of ‘real world’
problems with which the discipline is concerned: labor relations, housing, land use,
commerce, government and administration. At first glance, it would seem that the area of
study designated as family law possesses a coherence of the second sort. After all, the term
‘family’ has in itself no legal significance (although attempts are often made to define the
family for legal purposes); and the subject usually comprises a mixed bag of legal rules and
concepts, such as those concerned with marriage, divorce, parents and children and
property, each possessing a different historical origin and pattern of development. The only
justification for studying them together is that they all in some way concern the family, a
social phenomenon constituted outside the categories of the law. For this reason, family law
has grown over the years to include parts of other legal disciplines of relevance to the
family, such as property, criminal and housing law, taxation, social security, evidence and
procedure; as well as incorporating legal aspects of phenomena thought to have a ‘family’
connection, such as domestic violence, child abuse, marital rape, surrogacy, homelessness
and pensions (to name a few).

In spite of this, can it still be said that family law is a coherent area of study? It has already
been suggested that it cannot satisfy the first criterion of coherence mentioned above; and
if it were to satisfy the second, the subject would be a good deal broader than it is now,
probably unmanageable so. For if we were really to take the family as the starting point,
and were to consider all areas of law relevant to the family, we would want to include much
that is not currently considered part of the subject. For example, we might wish to consider
 the welfare state, the fiscal system and the labor market in more detail than is customary;
and we may also want to consider the areas of education and health services. These are all
areas of relevance to families and in which the family is encountered as a necessary relay in
the implementation of programs of social action. But family law has not been interpreted as
broadly as this. Instead, it focuses primarily on the more traditional question of status and is
thus primarily concerned with the means by which status is conferred, such as marriage,
parenthood and cohabitation, and on the means by which status may alter, such as divorce
or state action to remove children from parents. More recently, it has become concerned
with the problem of individuals abused by members of their own family.

[Excerpts from: John Dewar, Law and the Family, 2nd ed, Butterworths, London, 1992, p.1-2]

Rationale Behind Protection and Regulation of the Family

There are various reasons for regulating and protecting the family through the adoption of legislative
interventions. Before looking at these reasons it is necessary to define a family. The legal definition of
family is not a unitary concept. However, we can find some suggested definitions.

Planiol defines a family as a group of persons who are united by marriage, by filiation or even, but
exceptionally, by adoption. Another more or less similar definition is given by Murdok. In that definition,
family is considered as ' a social group characterized by common residence, economic cooperation, and
reproduction. It includes adults of both sexes, at least two of whom maintain a socially approved sexual
relationship, and one and more children, own or adopted, of the sexually cohabiting adults.'

From the definitions given above, one can categorize the family into nuclear and extended family. The
first and basic type of family organization is the nuclear family.

The nuclear family basically consists of a married man and woman with their offspring. ‘The
nuclear family is a universal human social grouping. Either as the sole prevailing form of the
family or as the basic unit from which more complex familial forms are compounded, it existed
as a distinct and strongly functional group in every known society.’
 An extended family, on the other hand, consists of two or more nuclear families affiliated
through an extension of the parent-child relationship rather than of the husband-wife
relationship, i.e, by joining the nuclear family of a married adult to that of his parents.

This way of defining the family has been criticized recently by many, especially by authors in the western
society, for its lack of accommodating the changes in the circumstances and societal values. As will be
seen shortly, establishing a family relationship will have its own effects, like for instances on issues of
child custody, maintenance and other rights and obligations. Defining family in the above manner
restricts persons engaged in nontraditional relationships from having those rights and obligations.
(Harvard Law Review, vol 104, p 1642-1659)

Do you believe that formation of the family needs to be regulated by the law? Why? Why not?

The family is a very important constitutive part of a society. It has natural, economic as well as social
importance. ‘The state of the weakness and of destitution in which the child is born, the amount and
length of care he needs, impose upon his parents duties which are not fulfilled in one day and which
create the solid foundation of all of the family relation.’

The family is the nucleus of the society, and hence much depends on its safety and security. As Planiol
correctly notes, ‘the small family group is the most essential element of all those which compose the
great agglomerations of men which are called nations. The family is the irreducible nucleus. And the
whole is worth what it itself is worth. When it is impaired or dissolved, all the rest crumbles.’ Though
the family may contain only few people, the impact that this unit has on the whole society is great.
Factors affecting a single family will later on have the effect of affecting the whole society.

Due to the fact that the marital status as well as the family entails community rights and obligations far
beyond those implicit in the ordinary civil contract, it is conceded that the states may prescribe the
conditions on which the status may be assumed. As a result, marriage laws are subject to the control of
the state government; and the interest of the state in the marriage of its citizens has long been
recognized. 'The state, it is said, is a party to every marriage. This means simply that the state is
interested in the well ordered regulation of the family organization of the persons within its borders.'

The state uses different means to regulate and control the formation as well as the effects of forming a
family. One basic means of doing so is through legislations. Laws have various functions within a state.

'Laws do more than distribute rights, responsibilities, and punishments. Laws help to shape the
public meanings of important institutions, including marriage and family. The best
interdisciplinary studies of institutions conclude that social institutions are shaped and
constituted by their shared public meanings. According to Nobel Prize winner Douglass North,
institutions perform three unique tasks. They establish public norms or rules of the game that
frame a particular domain of human life. They broadcast these shared meanings to society.
Finally, they shape social conduct and relationships through these authoritative norms.

Hence, the state protects and regulates the family by using its legislative power.

1.4 Sources of Family Relationships

What do you think are the different sources of family relationship?

There are three sources of family relationships namely, marriage, filiation and adoption. The status of
the persons as well as the rights and obligations of the persons differs with the difference in the source
of the relationship. This section deals with the different sources of family relationships and the effects of
the relationships.

1.4.1 Relationship by consanguinity

Relationship by consanguinity results from the birth. It is ‘the tie which exists between two persons,
such as the son and the father, the grandson and the grandfather; or those who descend from a
common ancestor, such as two brothers, or two cousins.’ Hence, relationship by consanguinity is
a natural fact which is derived from birth.

Excerpts from Planiol pages 387-389

The series of relatives who descend from each other form what is called a line. It is a direct relationship:
it is represented by a straight line going from one relative to the other, no matter how many
intermediaries there may be. As to the relationship which unites two relatives descending from a
common ancestor, it is called collateral relationship: its graphic relationship is formed by an angle. The
two relatives occupy the inferior extremity of the two sides and the common author is at the top. Two
collateral relatives are thus not in the same line; they form part of two different lines which started from
the common author, who represents the point where the junction is made; the two lines travel side by
side, which fact explains the word 'collateral'; each of the two relatives is, in regard to the other, in a line
parallel to his own, collateralis.

In each line relationship is counted by degrees, i.e. by generation. So the son and the father are related in
the first degree; the grandson and the grandfather in the second degree, and so on.

Method of calculation of relatives in the direct line is easy.: there are as many degrees as there are
generations going from one relative to the other.

When it comes to collateral relationship there are two ways of computation. The one used by the civil
law count the number of generations in the two lines by departing from the common ancestors and by
adding the two series of degrees. Thus, two brothers are related in the second degree (one generation in
each branch); an uncle and his nephew are related in the third degree .in the Canon law another way is
used to compute the degrees: the generations are counted only on one side. When the two lines are
equal, either may be taken. When they are not equal, the longest one of the two is chosen and no
attention is paid to the other. The result of this Canonical computation is that two first cousins are
related in the second degree, while according to the civilian computation they are related in the fourth
degree ..
The following diagrams illustrate how the computation is to be undertaken

To reach to the degree of relationship between persons related in the direct line, we simply count the
number of lines between them. Here, the grandfather and the grandchild are related in the third degree
in the direct line.

In calculating the degree of relationship in the collateral line, there are two way, which will lead to
different results. Let us have a look at the following diagram to have a clear understanding of the two
systems
The children of A are related in the collateral line. If we are using the Civil law system to calculate the
degree of relationship between B and C, who are brothers, we will add the two lines which are departing
from the common ancestor A. Hence, B and C are related in the second degree. B, who is the uncle of E,
is related to E in the third degree. And B is related to F in the fourth degree.

On the other hand, if we use the Canon law, the result will be different. As mentioned earlier, the
cannon law tells us to count only on one side. When the two lines are equal, we will simply take one
line. Accordingly, the degree of relationship between B and C is one. Conversely, if the lines are not
equal, the longest line is to be taken. Hence, in the above diagram, B is related to F in the third degree.

When we look into the Ethiopian Civil Code of 1960, it does not govern how the relationship in the direct
line is to be computed. Article 551 tries to give some highlight on how the computation of relationship in
the direct line is to be conducted. The Amharic version of the Code states as follows

የስጋ ዝምድና አቆጣጠር የጋራ ከሆነው የግንድ ወላጅ የዝምድና ደረጃ ጀምሮ ግራና ቀኝ ካለው ትውልድ መስመር እስከ
ሰባት ትውልድ ድረስ ነው፡፡
However, this article only tells us that calculation of degree of relationship in consanguial line is to be
done by taking the common ancestor as a bench mark.

Does the Revised Federal Family Code regulate the manner of computation of degree of
relationship? Why do you think is the reason?

1.4.2 Relationship by Affinity

Relationship by affinity is created as a result of marriage. 'Relatives through marriage are persons who
are not relatives, but which join the family by means of a marriage.' When a marriage is concluded,
the relationship is formed between one of the spouses with the blood relatives of the other spouse.
The woman who marries becomes the daughter in law (by marriage) of the father and mother of the
husband and the husband becomes the son in law of the mother and father of the wife. 'The two
spouses are considered as being only one, so that all the relationships of the one become, by the
effects of marriage, common to the other.' One thing which needs to be noted here is the fact that
the relationship created does not go beyond this. That means, a relationship does not exist between
the relatives of one spouse with the relatives of the other spouse.

1.4.3 Relationship by Adoption

Relationship by adoption is created as a result of a special contract between the adopter and the original
families of the adopted child. Unlike blood relationship, it is a fictitious relationship which resulted from
the agreement of the parties to the adoption contract. However, it is also an imitation of the real
relationship. Chapter eight deals in detail about adoption, and hence, it is not necessary to go to the
details under this section.

1.5 Effect of Family Relationship

What do you think are some of the effects of family relationship?

There are various effects which resulted from the relationship. Relationships give rights; they also create
obligations, and also carry incapacities. Hence, we can talk about three effects of a relationship: creation
of rights, creation of obligations and making the related persons incapable of performing some juridical
acts.

Rights emanating from a relationship:- relationship results in the right of the relatives to take the estate
of the deceased relative. That is to say, a right of succession is one of the effects of a family relationship.
Secondly, there is also the right of destitute relatives to get maintenance from the other relatives.
Parents will also have a right over the person and the estate of their children. For instance, article 198 of
the RFC provides that the obligation to supply maintenance exists between ascendants and descendants
and also between persons who are related by affinity in the direct line.

Obligations emanating from relationship: there are also various obligations which will subsist among
the relatives. The first obligation is that of alimony. Relatives have the obligation to provide alimony for
the destitute relatives who cannot have their own means of income. Moreover, there is also the duty on
the parents to take custody and raise their children. In this regard, article 219 of the RFC puts an
obligation on the father and mother of the minor child to be the joint guardian and tutors during the life
time of their marriage. Taking custody of children also involves making decisions in respect of the health,
education as well as social contacts of the child. Articles 255 and the following articles of the RFC
provide by way of obligation on the parents to take care of the health, residence, education as well as
social contact of the minor child. On top of this, there may be property inherited by the child. The
parents or in their absence, the ascendants will have the obligation to administer the property on behalf
of the child.

Apart from the above mentioned duties and rights, relationships may also result in incapacities of the
persons involved. The law prohibits marriage between close relatives. The incapacity to marry is one
type of incapacity resulting from relationship. Under 32 of the RFC as well as the regional family codes
relationship is provided as one essential condition for the conclusion of marriage.

Activity 1. Form a group of five and discuss amongst yourselves what family is in the Ethiopian
law and the sources of family relationship. Make sure to consult family laws of at least two
regions.

Activity 2. Discuss in groups the theories of computing family relationships. By drawing a

diagram, try to calculate the degree of relationship between you and your grandparents on the
one hand and between you and your nephews/nieces on the other hand. Use both the canonical
and civil law modes of computation.